After an amusing opening about parrots, Julian likened many arbitrations to the aftermath of a nuclear holocaust; one side may have won but there is desolation everywhere. For example, can the winning party who has been awarded his claim of £50,000 in full, but only after incurring costs of £160,000 of which £60,000 are taxed off, be said to have won in any worthwhile sense? He is clearly £10,000 down on the transaction and some might say that the only real winners on this scenario are the parties' representatives and the arbitrator himself. There is thus more to winning arbitrations than simply obtaining a positive award.

Mindful of the costs problem, and using the Bruce Lee film "Enter the Dragon" as an illustration of winning without fighting, Julian explored Professor Uff's suggestion that the ideal arbitration is one which does not take place at all, or more accurately, does not proceed to full Hearing and Award. Within the context of an arbitral reference, settlements may be achieved by negotiation or mediation in which both sides win if they end up better off than if the arbitral process had been allowed to run its full course. This win-win situation may be contrasted with a second category of winning in which one of the parties achieves a settlement which is better than the merits of its case suggest.

To achieve win-win situations, it is generally necessary to have regard to the interests of the parties in a wider sense than simply who has the merits and the sum due on that account. Such interests may relate to mode of payment or the wish to continue to trade with each other or to co-operate in future joint ventures in the hope of generating future profits together. As an extreme example of the latter, Julian told us he is currently charged with the task of making a sporting investment on behalf of the parties with the unresoluble residue in a recent negotiation.

Julian outline some ploys to achieve settlements better than the merits of the case might suggest. Some of these utilise the notion that a party's professed bottom line is rarely cast in stone and a bundle of cash on the table is always very tempting even if not fully to expectations. Chicago style bargaining, whereby the initial claims or offers are respectively hugely exaggerated or ridiculously low, are rarely effective in practice as attitudes are too readily hardened and credibility is soon lost when large positional adjustments are made. Pendulum arbitration procedures may limit such excesses and Julian contrasted Untermeyer's technique of reducing his offers each time they are rejected with that of offering a carefully chosen final value from the outset and sticking to it doggedly throughout.

Successful negotiation requires knowledge of how the other side is going to react. Clearly it is easier to settle cheaply at an early stage before each side's investment in costs becomes too great, but the timing of an offer may play a very significant part in achieving favourable settlement if it coincides with a period of difficulty for the opposition when, for instance, pleadings are late or an extensive request for Further and Better Particulars has just been lodged. The perception that making an offer will be viewed as a sign of weakness needs to be challenged as relentless pursuit of one's client's full entitlements may not be in that client's best interest, particularly if the opponent goes into liquidation on the point of being defeated.

Under the new Civil Procedure Rules a party's reasonable conduct before and during the proceedings to try to resolve the dispute can now be taken into account when an award of costs comes to be considered. Within the wide discretion provided by s.61.2 of AA'96 and their overriding duty under s.33, are arbitrators entitled or obliged to apply the same regime as a judge? Julian ventured the view that, in the context of costs, if an exercise of discretion is fair in the High Court, it is likely also be fair in arbitration as the underlying principles of the Arbitration Act '96 and the Civil Procedure Rules are similar, as pointed out by Lord Woolf recently. In short, parties who wish to win may be well advised to take similar action in arbitration as in litigation.

After describing a growing trend in Claimants' offers and the role some of the better arbitrators play in promoting settlements, Julian expanded on the role of the parties' representatives. He was highly critical of certain anti-lawyer sentiments expressed in recent editorials in Arbitration to the effect that lawyers are always the winners and their clients are always the losers. In his view, lawyers, by and large, are honest professionals who try to put their clients' interests before their own, albeit that too many of them are too ready to apply familiar High Court methodology inappropriately to arbitration.

The thorny question of whether legal representatives are justified in manipulating the process to achieve a result which is better than their clients' merits deserve was then addressed. Winning in this context requires the successful representative to utilise the rules to better advantage than his opponent. Acting efficiently, proofing witnesses thoroughly and identifying the strengths and weaknesses of the case as early as possible are very important, but to maximise his client's position, the legal adviser needs a thorough knowledge and understanding of the rules of the game. Understanding the optimum moment to make offers to the other side or applications to the Arbitrator are a feature of this approach. Winning arbitrations requires project management skills which recognise the aims of the stakeholders, the proper allocation of responsibility and the life cycle of the process.

Julian broached the question of whether a representative is justified in deliberately manipulating the process to frustrate the provisions of the Arbitration Act to avoid a fair result which may be unpalatable for his client. Clearly, the representative cannot go so far as to falsify evidence or put forward a case which he knows to be untrue, but short of that, how far can he go? Citing the case of a barrister who, without censure from the judge, considered rendering a case in court untriable by seeking to have part of it stayed to arbitration, Julian felt that the sanctions provided by s.41 of AA'96 legitimises the manipulation, as distinct from the breaking, of arbitration rules. Unsuccessful manipulators run the risk of being penalised in costs but they should not have their professional integrity called into question so long as they operate within the solicitors' and barristers' codes of conduct.

Turning to the possibility of a higher moral imperative, Julian was of the view that, unless the moral rules are defined within the system, there can be no uniform answer and much will depend on the morality of the individual. Legal practitioners have an obligation to act honestly, but this does not oblige them to run the case for the benefit of the arbitration system. Thus, within the ambit of acting honestly, it was Julian's firm conclusion that legal advisers should operate the rules to their clients' best advantage, and should conduct the case in the way their Client would if he had their legal knowledge.

Julian fielded questions from Francis Miller, Robin Orme, Jeremy Wilks and Peter Horne (who we were all delighted to see is back to sparkling form after major surgery) on the topics of honesty, disclosure of unhelpful evidence, fairness vis-à-vis litigation and arbitration procedures and the effect of withdrawing or reducing a Calderbank offer below the value of the Award. The members present showed their enthusiastic appreciation for Julian's thought provoking talk and the evening concluded informally as usual with buffet supper and wine for those who wished to partake.

Derek Ross